Spanos v Lazaris

Case [2008] NSWCA 74

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SPANOS v LAZARIS [2008] NSWCA 74

FILE NUMBER(S):
40586/07

HEARING DATE(S):
9 April 2008

JUDGMENT DATE:
28 April 2008

PARTIES:
Anthony William Spanos (Appellant)
George Lazaris (First Respondent)
District Court of New South Wales (Second Respondent)

JUDGMENT OF:
Beazley JA Basten JA Bell JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 07/12/0438

LOWER COURT JUDICIAL OFFICER:
Solomon DCJ

LOWER COURT DATE OF DECISION:
8 August 2007

COUNSEL:
Appellant Self-represented
J W Conomos/S Wells (First Respondent)

SOLICITORS:
Appellant Self-represented
Carneys Lawyers (First Respondent)
Crown Solicitor's Office (Second Respondent)

CATCHWORDS:
EVIDENCE – admissibility of further evidence on appeal – relevance
JUDICIAL REVIEW – assessment of evidence of witnesses who appeared in court below – assessment of credibility – apprehension of bias – views expressed by judge in course of argument – procedural unfairness – failure to produce document
JURISDICTION – review of order of District Court judge – error of law on face of record – jurisdictional error – [<i>Supreme Court Act</i>] 1970 (NSW) s 69 – [<i>District Court Act</i>] 1973 (NSW) s 176

LEGISLATION CITED:
[<i>Crimes Act</i>] 1900 (NSW), s 300
[<i>Crimes (Appeal and Review) Act</i>] 2001 (NSW), ss 11, 18, 19, 20
[<i>Criminal Appeal Act</i>] 1912 (NSW), s 5B
[<i>District Court Act</i>] 1973 (NSW), s 176
[<i>Justices Act</i>] 1901 (NSW), s 146
[<i>Supreme Court Act</i>] 1970 (NSW), s 69, 75A

CATEGORY:
Principal judgment

CASES CITED:
[<i>Anderson v Judges of District Court (NSW)</i>] (1992) 27 NSWLR 701
[<i>Charara v The Queen</i>] [2006] NSWCCA 244; 164 A Crim R 39
[<i>Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd</i>] [2006] HCA 55; 229 CLR 577
[<i>Craig v South Australia</i>] [1995] HCA 58; (1995) 184 CLR 163
[<i>Dranichnikov v Minister for Immigration and Multicultural Affairs</i>] [2003] HCA 26; 77 ALJR 1088
[<i>Ebner v Official Trustee in Bankruptcy</i>] [2000] HCA 63; 205 CLR 337
[<i>Ex parte Blackwell; re Hateley</i>] (1965) 83 WN (Pt 1) (NSW) 109
[<i>Fox v Percy</i>] (2003) 214 CLR 118
[<i>Gianoutsos v Glykis</i>] [2006] NSWCCA 137; 65 NSWLR 539
[<i>Johnson v Johnson</i>] [2000] HCA 48; 201 CLR 488
[<i>Lee v Cha</i>] [2008] NSWCA 13
[<i>Mordaunt v Director of Public Prosecutions (NSW)</i>] [2007] NSWCA 121; 171 A Crim R 510
[<i>Parker v Director of Public Prosecutions</i>] (1992) 28 NSWLR 282
[<i>R v Judge Mullaly; Ex parte Attorney-General (Cth)</i>] [1984] VR 745
[<i>Re McBain; Ex parte Australian Catholic Bishops Conference</i>] [2002] HCA 16; 209 CLR 372
[<i>Re Minister for Immigration and Multicultural Affairs; Ex parte Miah</i>] [2001] HCA 22; 206 CLR 57
[<i>Sasterawan v Morris</i>] [2007] NSWCCA 185

TEXTS CITED:

DECISION:
Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40586/07
DC 07/12/0438

BEAZLEY JA
BASTEN JA
BELL JA

28 April 2008

Anthony William SPANOS v George LAZARIS

Headnote

In 1984, Mr William Spanos, the father of the applicant, purchased an apartment in Cyprus in the applicant’s name.  In October 1984, the applicant executed…

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AGLC
Spanos v Lazaris [2008] NSWCA 74
Case
[2008] NSWCA 74
Decision Date

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, considered an appeal from an order made by a District Court judge. The appeal concerned the admissibility of further evidence and the assessment of evidence by the primary judge, with allegations of bias and procedural unfairness raised by the appellant.

The central legal issues before the Court of Appeal were whether the primary judge had erred in law on the face of the record, constituting jurisdictional error, by failing to properly assess the evidence, particularly the credibility of witnesses who appeared before him. The court also had to consider the admissibility of further evidence sought to be adduced on appeal and whether the apprehension of bias or the failure to produce a document amounted to procedural unfairness.

The Court of Appeal determined that the primary judge's assessment of the evidence was open to him on the material before the court and that no error of law had been demonstrated. The court found that the appellant had not established a sufficient basis for the admission of further evidence on appeal, nor had they proven that the primary judge’s conduct gave rise to a reasonable apprehension of bias or constituted procedural unfairness. The judges applied principles relating to the review of findings of fact by an appellate court and the stringent requirements for admitting fresh evidence on appeal.

Consequently, the summons for leave to appeal was dismissed, and the appellant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Summons dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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